Long wait for a small win

AT THE end of February 1997, the then NSW Treasurer, Michael Egan, declared Vincent Neary was right; the State Rail Authority had been systematically hiding more than $1 billion in losses.

Egan didn't mention Neary by name, he just issued a press release stating he'd discovered that over 20 years the authority had borrowed $1 billion to fix its crumbling infrastructure but had used the money to prop up loss-making passenger services.

That was exactly the claim Neary, a former State Rail signals engineer, had been making since 1989 when he told his then chief executive, Ross Sayers, that money meant for signalling had been siphoned off to hide losses on the passenger trains.

Neary is one of those obsessive whistleblowers who won't be brushed off and who won't modify their complaints to make life easier for their superiors.

When Sayers found there was no problem, Neary complained to the premier of the day, Nick Greiner, who flicked the allegations on to his transport minister, Bruce Baird.

When Baird agreed there was no problem Neary went to the Independent Commission Against Corruption, to the Ombudsman, to the Auditor-General. He even became a board member of Whistleblowers Australia.

Finally, he forced an inquiry into signalling, but his activities brought his career to a premature end. Infuriated, he set about trying to prove he was right by getting documentary proof using the Freedom of Information Act. He made more than 80 separate applications, which were resisted by a platoon of high-priced lawyers.

When Egan issued his statement, Neary pounced. He submitted more freedom-of-information applications asking his office and the Treasury for all the documents used to prepare the press statement.

Egan and the Treasury handed some over but withheld 10 on the grounds they were cabinet-in-confidence. The public was allowed to know State Rail was fiddling the books but it was not allowed to know why or how it had been doing it because the government said it was a matter for cabinet.

As usual, Neary appealed and ended up in the NSW Administrative Decisions Tribunal before its president, Judge Kevin O'Connor, who found against him.

Neary's case was that even though the documents were ruled exempt because they were protected by cabinet confidentiality provisions, the tribunal ADT had the power to order their release where there was an overriding public interest. O'Connor found he did not have that power and the documents stayed secret.

Ever since, that decision of O'Connor's has been cited by numerous government agencies when they reject freedom-of-information requests. If a government says material sought is exempt, then it's exempt, regardless of the public interest.

In a rare freedom-of-information victory, that changed on December 8 when the Supreme Court overturned O'Connor's decision. It upheld an appeal brought by Gerard Michael McGuirk and ruled the Administrative Decisions Tribunal (ADT) can order that access be given to exempt documents if it decides that's the preferable thing to do, based on the material before it.

According to a freedom-of-information expert, Peter Timmins, this decision may now see an easing of the NSW FoI Act.

"Any FoI applicant is now in a position to make submissions in future ADT cases that an otherwise exempt document should, in the circumstances, be disclosed,'' Mr Timmins said.

"This could include instances where exempt matter could be innocuous, is already in the public domain or where strong public interests justify disclosure, for example, of a document that could be claimed exempt on legal professional privilege, or similar grounds.''

Neary reckons the release of Egan's documents were very much in the public interest. After all, they related to the safety standards of the NSW rail network, used by hundreds of thousands of people every year. Had the material been made public when he sought it, the signal failure that led to the train smash that killed seven people at Glenbrook in 1999 might never have happened, he says.

At 69, Neary has long since given up his fight, but the Supreme Court decision might bring him back into the fray one last time to prove he was right all along.

"I welcome that Supreme Court decision,'' he said. "I may just take my case back to the ADT and get those documents.''

Posted
by Matthew MooreDecember 20, 2006 6:32 PM

LATEST COMMENTS

Nothing surprises.
NSW state govt has been corrupt and has misled the public for years on many issues.
iemma will be foolhardy enough to carry on carrs arrogant posturing and lose the next election becuase of it.

Posted by: snoop on December 21, 2006 7:10 AM

A small win? I think this is a huge win for democracy. Australia still has to learn a lot and this seems to be a step in the right direction. Neary might be a stuborn bloke but in the end, it's all about accountability. Neary, you rock!

Posted by: Paul on December 21, 2006 8:41 AM

Vincent Neary is a real hero. An ordinary citizen standing up against the politicians, overpaid lawyers, PR Spinners and all the other government 'insiders' who can't stand proper scrutiny by the people who pay the bills : taxpayers.
More power to Vincent Neary and this column !

Posted by: Dave on December 21, 2006 10:43 AM

Good onya Vincent, its deplorable that Courts are so willing to lay down for politicians. Separation of Power in Australia, yeah whatever...

Posted by: tully on December 21, 2006 11:29 AM

Hi Matthew - I just wanted to say how much I appreciate your column and information - I don't write in, but read it and think your work and issues are terriffic - a return to the true essence of journalism, exposure and hard work... your work with FOI is vital, intersting and very insightful thank you so much and I hope your column continues next year
kind regards,
melba

Posted by: melba on December 21, 2006 12:13 PM

Surprise Surprise. Not.

Nothing new here. Having used FOI many times over the last ten years it's amazing how much yoiu get sometimes and not others.

What's more interesting is when yuo then subpoena the documents specifically, they seem to no longer exist or are not returned in the subpoena.

Or even better, you get half in the FOI and the other half in the subpoena. Join the dots.

Or how about this one! Western Sydney Area Health Service "left out" seven pages from a medical file. There was no explanation. In fact one might not really have adduced that the pages were missing. Save the fact that the information contained in them was already known.

So one subpoena later, two motions and hearing dates before the court because the "whole file is confidential" and eventually a granting of access to the "whole file" that was given under FOI anyway, we find seven new pages. Confirming the information we already HAD at hand anyway. And those pages - relate to my father.

Sad when you can't get information about yourself and your supposed relationship with your father, isn't it.

I think the game is nearing it's ending though.

Posted by: Adam Todd on December 21, 2006 2:01 PM

Vincent Neary’s efforts are encouraging. I’ve been considering seeking information, via FOI, relating to a 2003 report prepared for State Rail that could be useful to compare to a current report on operational rail noise associated with the ECRL. The current engineer’s report states that some comparisons cannot be made as previous rail noise tests have not been undertaken in certain areas. Several EPA searches, under FOI, may be costly for a pensioner but may provide useful comparisons.

Posted by: Ursulla on December 21, 2006 3:36 PM

Long wait for as small win

This is a huge win for FOI LAW in NSW this case shifts Executive powers away from the executive government and places them back to the NSW Parliament.

This LABOUR Government has white anted ,stymied and refused to comply with the following Memo of understanding 31 0ct 1991.

Addendum

MEMORANDUM OF UNDERSTANDING BETWEEN THE
HONOURABLE NICHOLAS FRANK GREINER, MP, PREMIER
FOR AND ON BEHALF OF THE
LIBERAL/NATIONAL PARTY GOVERNMENT (THE GOVERNMENT)
AND MR JOHN HATTON, MP, MS CLOVER MOORE, MP,
AND DR PETER MACDONALD, MP (THE INDEPENDENT MEMBERS)

The aim of this Memorandum of understanding is to provide stable Government for the
people of New South Wales and to enhance Parliamentary democracy and open and accountable Government in New South Wales. The Independent Members of the Legislative Assembly, concerned that the balance of power between the Parliament and the Executive Government has shifted too far in favour of the Executive Government, have proposed to the Government a “charter of Reform”
Memo of understanding 310ct1991 containing a series of measures which the Independent Members believe would in large measure redress that imbalance.
The New South Wales Government, having considered the submission from the Independent Members, accepts that over the 135 years since the advent of responsible Government in New South Wales in 1856, the balance of power between the Parliament and the Executive Government has shifted unduly in favour of the Executive Government.

To all FOI soldiers “Fighting the good fight”
Keep up the good work
See you in 2007

Vincent Neary Vindicated

Posted by: Robert Cianfrano on December 21, 2006 3:36 PM

For Ursulla, you should find that you are entitled to a fee reduction under FOI as a pensioner and also on public interest grounds.

Have you checked the consortium's library? Another avenue is your local council - many falling within the corridor hold documents associated with the link. I know that a couple of councils commissioned their own noise measurements as well. Check all the councils along the link - and their libraries.

I hope Vince considers revisiting his matter. I understand His Honour is still there. Could prove interesting.

Posted by: keenobserver on December 21, 2006 10:59 PM

Vincent Neary is a national hero, although he will probably not ever get any recognition. He put the community ahead of his own interests and, as an engineer, there is no higher calling. If ultimately he gets the documents he was seeking, and I hope he does, then we will see the full extent of the failure of Governments at that time, and probably since, to put the community first. FOI legislation was intended to prevent and, where it occurred, to expose exactly this.

Season's greetings to all.

Posted by: Toby on December 24, 2006 7:18 AM

Hi -

Could that be the same Michael Egan, former Treasurer of NSW who described 'exposure from chemical emissions' as being no worse than a 'slip, slop, slap' of sunscreen cream?
Or that he was more concerned when swimming in the ocean, to find a 'slick of sunscreen cream floating in the surf' directly beside him.

Or who is documented in Hansard as saying he belived that 'sunscreen cream' would be proved to be more 'toxic' than 'heavy metals and hazardous/toxic waste', surely not !!!!!!!!
His tirade levelled at Dr. Arthur Chesterfield-Evans is well documented.

Josephine

Posted by: Josephine on December 28, 2006 6:07 PM

Gee, maybe it would be an idea for State Rail to spend less on spin doctors, overpriced big six law firm lawyers, and knownothing ministers and more on people who actually know something about trains, like Mr Neary. Just an idea......